Final Exam Guide Flashcards
This has everything from the previous study guides but in more detail to be safe!
What is law?
According to Blackstone, law is a rule of civil conduct, commanding what’s right and what’s wrong
What are the objectives of law?
Establish enforceable rules of conduct among individuals and between individuals and society
Governing relationships (peacefully resolve disputes)(establish frameworks for societal operations)
Concerned with what is right or wrong regarding business transactions
Business Law
What are the roots of our legal system?
Europeans (English, French, Spanish) colonists settled in the US
Customs that came to be recognized by the courts as binding on the community and therefore the law
Common Law
Colonists brought the concept of Common Law to the US from where?
England
- Equal treatment (different tools)
- Justice System based on fairness
- Provides relief other than merely $ damages
Equity Law
What are the 4 sources of law?
- Constitutional Interpretation
- Statutory Law
- Judicial Decision
- Administrative Agency Orders
A document that contains fundamental principles of a government
Constitution
What is the supreme law of the US land?
Constitution
If a rule is unconstitutional, what happens?
It gets removed because rules have to comply with the Constitution
Consists of the 10 amendments designed to protect the civil rights and liberties of citizens and the states
Bill of Rights
Law enacted by legislative bodies (federal, state)
Statutory Law
Law enacted by cities
Ordinance
Court decision that determines the decision in a subsequent, similar case
Precedent
Principle that a court decision controls the decision of a similar future case (first decision begins to apply on future similar cases regardless of the person)
Stare decisis
Government board or commission with authority to regulate matters, implement laws, rules, regulations, orders, and decisions
Administrative Agency
What is Civil Law?
Concerned with private or purely personal rights
Was this case civil or criminal? How can you tell?
Frederic Goldman vs James Simpson
Civil because it has 2 last names against each other
What is criminal Law?
Laws dealing with crimes and the punishment of wrongdoers
Laws dealing with offenses against society as a whole
Was this case civil or criminal? How can you tell?
State of California vs James Simpson
Criminal because it’s the state against person
Private or civil wrong or injury, other than by breach of contract, for which there may be an action for damages
Tort
Failure to exercise ordinary care (didn’t comply with bare minimum requirements)
Negligence
A defendant is liable for committing an action, regardless of what their intent or mental state was when committing the action
Strict Liability
What are the 3 Ethical Principles?
- Seriousness of consequence
- Consensus of the majority
- Changes in ethical standards
What is this:
- Provides rules to deal with all phases of a commercial site
- Rules and regulations of transactions among the states
Uniform Commercial Code
That branch of philosophy dealing with values relating to human conduct, with respect to the rightness and wrongness of certain actions and to the goodness and badness of the motives and ends of such actions
Ethics
What is the development of ethics?
Philosophy
Religion
Secular
Values
Code of Ethics
What is this:
A declaration or statement of the professional standards of right and wrong conduct
- Historical
- Personal
- Situational
- Business
Code of Ethics
According to Lawrence Kohlberg’s Theories of Moral Development which level is this:
- Moral reasoning based on reward and punishment from those in authority
- To avoid punishment and accomplish a reward
Pre-Conventional Level
According to Lawrence Kohlberg’s Theories of Moral Development which level is this:
- Expectations of social group are supported and maintained
- Do it because you want people to be proud of you
Conventional Level
According to Lawrence Kohlberg’s Theories of Moral Development which level is this:
- Considers the universal moral principles which supersede the authority of the group
- Do it because you believe in it
Post Conventional Level
According to Kohlberg, how does the moral development occur?
Not from maturation or socialization but from our own thinking about moral problems
According to Carol Gilligan’s Theories of Moral Development which level is this:
- Only the needs of the self are recognized
- Only worry about your needs
Pre Conventional Level
According to Carol Gilligan’s Theories of Moral Development which level is this:
- The needs of others are prioritized while the needs of the self are denied
- Worry about needs of others
Conventional level
According to Carol Gilligan’s Theories of Moral Development which level is this:
- A balance is struck between the needs of self and others
- I go first but then I’ll worry about others
- Take care of yourself first
- Adhering to obligation of care
- Avoid harm or exploitation to self
Post Conventional Level
What are the two types of ethics?
Normative
Meta
Which type of Ethics is this:
- Formulating moral standards of conduct
“treat all bodies with respect”
Normative Ethics
Which type of Ethics is this:
- The study and evaluation of standards of conduct
“Why treat all bodies with respect?”
Meta Ethics
Laws dictate ___________ standards of behavior that society will tolerate.
Ethics represents the __________ standards expected by the profession
minimum
ideal
According to Funeral Service Ethics:
What should we keep in mind during the Arrangement Conference and Services?
Confidentiality
Knowledgeable and factual representations
Equitable Professional Services
According to Funeral Service Ethics:
What should we keep in mind when it comes to ethics in regards to the deceased?
Confidentiality and privacy issues
Professional procedures
What is Absolutism?
Right or Wrong
What is Relativism?
There is no one correct moral standard for all times and all people
What are the 6 parts of the Texas Administrative Code Rule 209.1 Ethical Standards?
- Strive to attain highest degree of ethical and professional conduct
- Avoid misrepresentation
- Licensee shall not violate any statute, ordinance, or regulation affecting the handling, custody, care or transportation of a decedent
- Not knowingly furnish inaccurate, deceitful, or misleading information to the Commission or a consumer
- Applicability. Aspire to achieve
- Competency
What are the functions of the court system?
To interpret the law
To apply the law
What is this:
-The person or entity that files the lawsuit
- Is responsible for filing the civil complaint and is almost always charged with the burden of proving the allegations
- Petitioner
Plaintiff
What is this:
- The person or entity being sued
- Is responsible for answering the complaint
- Respondent
Defendant
What is the procedures in court of record?
Filing the suit > Summons > Defendant admits/denies Charges > Discovery > Trial
What is the trial procedure order?
Jury Selection > Opening Statements > Plaintiff’s Evidence / Defendant’s Evidence > Summary of Evidence > Judge’s Ruling / Jury’s Verdict
What are the Civil Court Procedures?
Complaint
Summons
Answer
Discovery
Trial
Judgement
Execution
Which part of the Civil Courts Procedure is this:
- The document which initiates a civil laws case
- A formal action taken to officially begin case
- Written against defendant, specific laws violates, facts that led to the dispute
- Any demands made by the plaintiff to restore justice
Complaint
Which part of the Civil Courts Procedure is this:
- A notice given to a defendant
- Attaching the complaint
- Stating a time frame in which to respond
Summons
Which part of the Civil Courts Procedure is this:
- Official document responding to the plaintiff’s complaint
Answer
Which part of the Civil Courts Procedure is this:
- The informal and formal exchange of information between two sides in a lawsuit
Discovery
Which part of the Civil Courts Procedure is this:
- A structured process where the facts of a case are presented to a jury
- Jury decides if the defendant is guilty or not guilty of the charge offered
- During the trial, the prosecutor uses witnesses and evidence to the jury that the defendant committed the crime(s)
Trial
Which part of the Civil Courts Procedure is this:
- A decision of the court in a lawsuit
Judgement
Which part of the Civil Courts Procedure is this:
- The carrying out or completion of some task
Execution
What are the requirements of a valid contract?
Mutual Agreement
Competent Parties
Consideration
Lawful Purpose
Proper Form
Which requirement of a valid contract is this:
Previously called the meeting of the minds
Mutual Agreement
Which requirement of a valid contract is this:
Not mentally unable to consent, not a minor, not someone in jail
Competent Parties
Which requirement of a valid contract is this:
The exchange, usually money, something for something
Consideration
Which requirement of a valid contract is this:
What’s done must be legal
Lawful Purpose
Which requirement of a valid contract is this:
Notarization, witnesses, if related to selling land or real estate, or will take longer than a year
Proper Form
A legally enforceable agreement between 2 or more competent people
Contract
Failure of one of the parties to perform the obligations assumed under the contract
Breach of Contract
True or False:
A contract must be an agreement
True
True or False:
An agreement must be a contract
False
What are the classifications of contracts in formation?
Expressed
Implied
Quasi
Formal
Simple
What type of contract is this:
- Oral or written
- Means very detailed
Expressed Contract
What type of contract is this:
- Assumptions / expectations based on common sense, mutual agreement, silent
Implied Contract
What type of contract is this:
- Almost, looks like a contract, not real estate or personal property
Quasi Contract
What type of contract is this:
- Notarized, in writing
Formal Contract
What type of contract is this:
- Can be a handshake, a yes, a receipt
- Very loose confirmation, mostly implied
Simple Contract
What are the classifications of contracts in performance?
Unilateral
Bilateral
Executed
Executory
_____________ contract only has an offer, once an offer is accepted, turns into _____________ contract
Unilateral
Bilateral
True or False an Executory contract is completed?
False
It’s in progress, not completed (once completed becomes an Executed Contract)
What are the classifications of contracts by enforceability?
Valid
Unenforceable
Voidable
Void
What type of contract is this:
Has all elements of a contract and can move forward, is enforceable
Valid Contract
What type of contract is this:
Has all elements but can’t be enforced at the moment
Unenforceable Contract
What type of contract is this:
Can be cancelled, has all elements, can change your mind
Voidable Contract
What type of contract is this:
One or more elements missing turning it into an invalid contract
Void Contract
What is an offer?
Proposal to make a contract
What is an offeror?
Person who makes an offer
What is an offeree?
To whom the offer is made
A valid offer includes what 3 requirements?
- It must be definite
- It must appear to be seriously intended
- It must be communicated to the offeree
What are reasons for the termination of an offer?
- Revocation communicated prior to acceptance
- Terms of the offer (depend on contract)
- Lapse of a reasonable time
- Death or insanity of the offeror
- Rejection
- Counteroffer (haggling, negotiation)
- Intervening illegality (something changes, making it illegal)
What are invitations to deal? (Don’t qualify as offers)
Advertisements
Bids
Price Lists and Quotations
Estimates
Assent to an offer resulting in a contract
Acceptance
Offeree’s response that rejects offer by varying its term
A change to original offer that rejects offer and becomes a new offer
Counteroffer
For an agreement to be enforceable, all parties must have the ______ and _______ capacity to contract
Legal
Mental
Persons under the legal age to contract
Minor
Most states enacted status making individuals competent to contract at what age?
18 years old
True or False:
Married minors are fully competent to contract
True
What are contracts that can’t be avoided?
- Contracts of minors for necessaries
- Minors business contracts
- Other enforceable contracts: educational loans, contracts for medical care, contracts made with court approval
A minor can sometimes ______ a contract
Disaffirm
Minors may ________ the contract after attaining majority
ratify
What is ratify?
Indication by adult that a contract made while a minor is binding
Items required for living at a reasonable standard
Necessaries
How can one safely contract with a minor?
- For necessaries
- Use of a cosigner
- A minor is liable for torts as fully as an adult is
Who is incompetent to contract?
Minors
Mentally Incompetent people
Intoxicated people
Convicts
_____________ is whatever the promisor demands and receives as the price for a promise
Consideration
What is considered consideration?
Money (most used)
Services or knowledge, and expertise
A promise to do something
A promise not to do something
Property of any kind
What are 3 reasons a consideration would be insufficient or invalid?
- Performing or promising to perform what one is already obligated to do
- Refraining or promising to refrain from what one has no right to do
- Past performances (based on your history or track record)
True or False:
Partial payment of a past debt due can be consideration
False
What are examples of promises enforceable without consideration?
- Charitable contributions
- Debts of record
- Promissory estoppel
What is this:
A contract law concept devised to stop entities from going back on promises, even if not written in a contract
Prevents you from going back on your promise
Stops you from trying to get out of a signed contract
Promissory Estoppel
What are the elements of a promissory estoppel?
A promise is made
v
Promisor reasonably expects the promise to induce action by promisee
v
The promisee does act
v
Justice requires enforcement of the promise
What is a unilateral mistake in a contract?
Mistakes by one party to a contract
Generally do not render contracts
What is a bilateral mistake in a contract?
Mistakes by both parties to a contract
What are the defenses to enforcement (of a contract)?
Misrepresentation
Fraud
Fraud Manner
Duress
Undue Influence
Which defense to enforcement (of a contract) is this:
- A false statement of a material fact
- Made by one who knew it to be false
- Intent to induce the innocent party to act
- Innocent party relies on the false statement and makes a contract
- Primary reason for lawsuit
Misrepresentation
Which defense to enforcement (of a contract) is this:
- Inducing another to contract as a result of an intentionally or recklessly false statement of a material fact
- Becomes a crime when “knowing misrepresentation of the truth or concealment of a material fact to induce another to act to their detriment” (Black’s Law)
Fraud
Which defense to enforcement (of a contract) is this:
- By express misrepresentation
- By concealment (hiding / not stating important information)
- By silence when one has duty to speak
Fraud Manner
Which defense to enforcement (of a contract) is this:
- Obtaining consent by means of threat
- Causes person to agree to a contract they wouldn’t otherwise agree to
Duress
Which defense to enforcement (of a contract) is this:
- Person in special relationship causes another’s action contrary to free will
- Basically coercion
Undue Influence
To set a contract aside (freeze or put contract on temporary hold)
Rescind
Judicial correction of a contract (amendment, or law changes cause contract to be edited)
Reformation
What types of contracts are prohibited by statute?
- Gambling contracts
- Sunday contracts
- Usurious contracts
- Contracts of: an unlicensed operator, for sale of prohibited articles, in unreasonable restrain of trade, obstruct justice, injuring the public service
What certain contracts are required by law to be in writing?
Agreements to sell land or any interest in land
An agreement which cannot be performed within a year
An agreement to become responsible for the debts or default of another
An agreement of an executor or administrator to pay debts of estate from executor’s or the administrator’s personal funds
An agreement containing a promise in consideration of marriage
An agreement to sell goods for $500 or more
What is a debt?
Obligation to pay money, before due date
What is a default?
Breach of contractual obligation, after due date
What are the ways a contract can be terminated?
Performance of the Contract
Voluntary Agreement of the Parties
Operation of the law
Impossibility of performance
Acceptance of a breach of contract
Which termination of a contract is this: the people complete the task that was supposed to be done
Performance of the Contract
Which termination of a contract is this: It becomes illega
Operation of the law
Which termination of a contract is this: Both parties agree to end the contract (proper or improper form)
Voluntary Agreement of the Parties
Which termination of a contract is this: Unable to complete the task
Impossibility of Performance
Which termination of a contract is this: Proper form, party agrees to the end / breach from the other
Acceptance of a breach of contract
What are the 5 ways a Contract can be terminated by Performance?
- Time of performance (how long will it take to do the task)
- Tender of Performance (check the completed task)
- Tender of Payment (payment)
- Satisfactory Performance (like it)
- Substantial Performance (above satisfaction but forgot minor details)
What are the ways a contract can be Discharged by Operations of the Law?
- Bankruptcy
- Running of the statute of limitations
- Alterations of written contracts
- Impossibility of Performance
What are the ways a contract can be terminated by impossibility of performance?
= Destruction of the subject matter (an act of God)
- New laws making the contract illegal
- Death or physical incapacity (unless specified other)
- Acts of other parties
What are the remedies for breach of contract?
Suit for Damages
Suit to rescind the contract
Suit for specific performance
What are the different ways one can suit for damages?
Nominal
Compensatory
Punitive
Liquidated
Which ways can a funeral home be suit for damages by?
Punitive and Liquidated
Which type of damages, for suit for damages as a remedy for breach of contract is this:
- Can’t say was ignored / forgotten because you were still given the minimum
- Symbolic
- Prevents a lawsuit and avoid complaint
Nominal Damages
Which type of damages, for suit for damages as a remedy for breach of contract is this:
Exact dollar amount given; something of same/equal value
Compensatory Damages
Which type of damages, for suit for damages as a remedy for breach of contract is this:
More than exact dollar amount given
Punitive Damages
Which type of damages, for suit for damages as a remedy for breach of contract is this:
Can’t put a price tag (quasi law) on people / property
Liquidated Damages
Conveyance of rights in a contract to a person not a party
Assignment
Person making an assignment
Assignor
Person to whom a contract right is assigned
Assignee
Transfer of duties without a transfer or rights
Temporarily represent someone
Get responsibilities but not position
Delegation
Person not party to contract but whom parties intended to benefit
2 people do contract but a 3rd gets the benefits
3rd Party Beneficiary
Person to whom promisee owes obligation, which is discharged if promisor performs
Creditor Beneficiary
Anything that may be owned
Property
When it comes to property, law protects what?
Right to own property
Right to use property
What is personal property?
Moveable property
Tangible
Intangible
What type of property is this:
Personal property that can be seen, touched, possessed
Tangible
What type of property is this:
- Evidence of ownership of rights or value
- Something you invented
- Including watermarks to identify it’s yours
- Goodwill - things associated with you
- Knowledge - your ideas
Intangible
What are the 3 ways one can acquire personal property?
Purchase
Will
Gift
Which way to acquire personal property is this:
- buyer pays the seller and seller transfers property to buyer
- consideration (usually $)
Purchase
Which way to acquire personal property is this:
- someone dies and leaves a written statement on how they want their property conveyed
Will
Which way to acquire personal property is this:
- transfer made without consideration in return
Gift
Person who makes a gift
Donor
Person who receives a gift
Donee
What is this:
- Transfer of possession of personal property, but not the title
- Property will be returned
- Lending, not giving ownership
- Property returned in equal or better condition
Bailment
Person who gives up possession of bailed property
Bailor
Accepts possession of the bailed property
Bailee
Bailment imposed when a person controls lost property
Constructive Bailment
What are the types of bailments?
Constructive Bailment
Bailment for the sole benefit of the bailor
Bailment for the sole benefit of the bailee
Mutual benefit bailment
Company that transports goods, people or both
Carriers
What are the 2 types of carriers?
Private and Public
What carrier is this:
- Transport goods or persons for a fee
- May refuse services if unprofitable
- Trucks, moving vans, ships, delivery service
Private Carriers
What carrier is this:
- Transports goods or people for all who apply for that service
- Trains, buses, airplanes, ships, subways
- Create their own schedule
- Public
Common Carriers
What are the liabilities of Common Carriers?
Acts of God
Acts of a public authority
Inherent nature of the goods
Acts of the shipper
Acts of a public enemy
What is this:
- Consignee alone is designated to whom goods are to be delivered
- Consignee’s rights may be transferred but third party obtains no greater rights than consignee had
Straight Bill of Lading or nonnegotiable
What is this:
- Must be presented to carrier before carrier can safely deliver the goods
- Allows delivery of shipped good to bearer
Order Bill of Lading or negotiable
What is moveable personal property?
All physical items except real estate
What is a title?
Ownership of the subject matter
Document stating ownership
What is a price?
Consideration in a sales contract
What are the 3 types of goods?
Identified
Existing
Future
What types of goods are these:
- Goods to be delivered to the buyer
Identified Goods
What is revocation?
You can change your mind and return goods at a reasonable time
What type of goods are these:
- In existence (aka in stock)
- Owned by seller
Existing Goods
What type of goods are these:
- Goods that don’t exist at the time of the sales transaction
- Will be developed, custom goods
- Pre-orders
Future Goods
What purposes does a bill of sale serve?
Proof of title
Proof buyer obtained the goods legally
What is FOB Destination?
Seller is responsible until it’s in the hands of the buyer
What is FOB Shipping Point?
Buyer is responsible when they pay as soon as it’s shipped to them
What are the types of warranties?
Express
Against Infringement
Implied
Full
Limited
What type of warranty is this:
- Specifically spells out the terms of a warranty orally or in writing
- Seller’s opinion doesn’t constitute this warranty
Express Warranty
What type of warranty is this:
- Seller of goods provides a warranty to the buyer that the goods being sold have not
Warranty against Infringement
What type of warranty is this:
- Isn’t made by the manufacturer but is imposed by the law
Implied Warranty
What type of warranty is this:
- Must remedy any defects in a product during a reasonable time
-Aren’t restricted to certain parts, labor, time, periods, etc etc
Full Warranty
What type of warranty is this:
- All other warranties for consumer products
- Time frame limited
Limited Warranty
What is this:
- No warranties provided
- Only have manufacturer warranty
Disclaimer
Fix the maximum rate of interest that may be charged on loans
Usury Law
What is the Sherman Act?
Prevents a monopoly
What is the Clayton Act?
Prohibits price discrimination
Established for prices to be equal to all
What is the Robinson-Patman Act?
Prohibits price discrimination generally and geographically
Prohibits unreasonably low prices from large sellers in order to eliminate competition from small firms
The Federal Trade Commission prohibits?
Unfair methods of competition in commerce
Unfair or deceptive acts or practices affecting commerce
Writings that can be transferred from person to person as a substitute for money or an instrument of credit
Negotiable Instrument
Transferring ownership of negotiable instrument to another party
Negotiation
Commercial paper made payable to the order of a named person
Order Paper
Commercial paper payable to whoever possession of it
Bearer Paper
Written order by one person (drawer) directing another (drawee) to pay sum of money to 3rd person (payee)
Draft
(Bill of Exchange)
Unconditional written promise to pay a sum of money to another
Promissory Note
The instrument of the owner made on the back of an instrument
Indorsement
What are the Essentials of Negotiability?
Signed Writing
Promise to Pay
Unconditional
Fixed Amount of Money
Payable on Demand
Payable to Order or Bearer
Payee and Drawee must be Designated
Date and Place
Which essential of negotiability is this:
- Must be in writing
- Common place is lower right hand corner, but that location isn’t mandatory
- Can be signed by authorized agents
Signed Writing
Which essential of negotiability is this:
- *We’re the last to be tested on this on the National Board Exam
- For a draft, the word “order” isn’t required, but the intent must be clear
- A note must contain this
Promise to Pay
Which essential of negotiability is this:
- Can’t be contingent upon anything nor contain the word “if”
Unconditional
Which essential of negotiability is this:
- Need not be in US money but must be in some recognized currency
- Cannot be in scrip, gold bullion, bonds, or other assents
- Can’t be dependent on anything
- Wording must be clear as to exact amount
Fixed amount of Money
_______________ is the transfer of a negotiable instrument in which transferee becomes the holder of the instrument
Negotiation
___________ instruments are negotiated by delivery
Bearer
_______ instruments are negotiated by indorsement and delivery
Order
What is an allonge?
A paper so firmly attached to an instrument as to be a part of it (as stapled or taped), taking place of a signature
What type of indorsement is this:
Can consist of a mere signature
Blank Indorsement
What type of indorsement is this:
Designates particular person to whom payment is to be made
Special Indorsement
What type of indorsement is this:
Limits liability of indorser
Qualified Indorsement
What type of indorsement is this:
Prevents the use of the instrument for anything except the stated use
Restrictive Indorsement
What is renunciation?
A unilateral act of the holder, usually without consideration
The person who appoints another to contract with 3rd parties
Principle
The person appointed to contract on behalf of another
Agent
Contract under which one party is authorized to contract for another
Agency
What are the types of Agents?
General
Special
Broker
Attorney in Fact
What type of agent is this:
Agent authorized to carry out particular kind of business or call business at a place
Only focus on one particular aspect of business
General Agent
What type of agent is this:
- Agent authorized to transact specific act or acts
- Licensed or expert on field
Special Agent
What type of agent is this:
- Agent with job of bringing 2 contracting parties together
- Like real estate agent or Madam
Brokers
What type of agent is this:
- General agent appointed by written authorization
Attorneys In Fact
What type of authority is this:
- Specifically delegated to agent by the agreement creating the agency
- Very detailed, super specific on what you can and can’t do
Express Authority
What type of authority is this:
- Agent’s authority to do things in order to carry out express authority
- Very open, don’t care how you get the end result, as long as goal is achieved
Implied Authority
What type of authority is this:
- Authority that an agent possess by custom
- Traditionally, how it’s usually done
Customary Authority
What type of authority is this:
- Authority that an agent believes possess because of the principle’s behavior
- May want same person from last time
Apparent Authority
How is an Agency created?
Appointment
Ratification
Estoppel
Necessity
Which part of the creation of an agency is this:
Oral or in written statement of the principle to the agent
Appointment
Which part of the creation of an agency is this:
Approval by one person of the unauthorized act of another done in the former’s name
Ratification
Which part of the creation of an agency is this:
Agency arising when a person by words or conduct leads another person to believe a 3rd party is an agent
Estoppel
Which part of the creation of an agency is this:
Arises out of family relationships and unforeseen emergencies
Necessity
What are the agent’s duties to the principle?
Loyalty and good faith
Obedience
Reasonable skill and diligence
Accounting
Information
What are the principle’s duties to the agent?
Compensation
Reimbursement
Indemnification
What are the agents liabilities to third parties?
- Agents who do their own contracting and don’t disclose names of principles become liable
- Agents may make themselves personally liable to 3rd parties by express agreement to the responsible
- People who assume to act for others but have no authority are personally liable
- Agents incur personal liability for fraud or other wrongdoing
Which termination by act of the party is this:
The whole thing is completed as originally stated
Original Agreement
Which termination by act of the party is this:
Extension, after the trial basis it becomes full time, cancel contract but make new one for longer
Subsequent Agreement
Which termination by act of the party is this:
Pay for the full time frame but shorten the actual time
Revocation
Which termination by act of the party is this:
Agent quits
Renunciation by the agent
Which termination by operation of the law is this:
Must be cancelled
Subsequent illegality
Which termination by operation of the law is this:
A natural disaster, can’t buy it anymore, could be a tornado
Destruction
What terminations by operation of the law are there?
Subsequent illegality
Destruction
Dissolution
Death or incapacitation
Bankruptcy
War
Liable for injuries by 3rd parties caused by negligence of employees
Must comply with laws relating to employees
Employer
Performs work of the employer
Under the control of the employer
Employee
What is employment at will?
Employment terminable by employer or employee
For no reason
For any reason
At any time
What are the employer duties?
To exercise care
To provide a safe place to work
To provide safe tools
To provide competent employees by properly training them
To instruct employees
What are the employee’s duties?
Obey their employer’s lawful orders concerning the employment
Exercise good faith toward the employer
Do their work carefully and conscientiously
A person or firm that performs services for another
Not under the direct control of the person who engages them
Independent Contractor
What is this:
Business owned by one person
Simplest and most common form of organization
Sole Proprietorship
What are these advantages of:
- Flexible management
- Ease of operation
Sole Proprietorship
What are these disadvantages of:
- Unlimited liability (all profit, all loses)
- Limited management ability
- Limited capital
Sole Proprietorship
What is this:
- 2 or more people
- Voluntarily started
- Operate the business lawfully for a profit
Partnerships
What type of partnership is this:
Actively and openly engage in the business and held to everyone as a partner
General
What type of partnership is this:
Liable up to the amount of their investment
Limited
What type of partnership is this:
Takes no active part in the management of a partnership but has capital invested in the business
Silent Partner
What is the basis for study?
To gain sufficient knowledge to act
What case created the basis for study?
Hawke, Adam vs Murray
The rules of civil conduct
- commanding what’s right
- prohibiting what’s wrong
Law
Broadly determined
Mortuary service in relation to the law
Mortuary Law / Funeral Law
The science or art of disposing of the death
Mortuary Service
What is the law of admiralty?
Law of the Sea
What is the Talmudic law? (What other names does it have)
Jewish Law
Law of Moses
Pentateuch
What is pentateuch?
First 5 books of old testament, Talmudic Law
What are the 5 books in Pentateuch?
- Genesis
- Exodus
- Leviticus
- Numbers
- Deuteronomy
What is Genesis about?
Beginning of everything
What is Leviticus about?
Sanctification
What is Exodus about?
10 commandments
What is Numbers about?
Number related things such as census / statistics
What is Deuteronomy about?
Review of the first 4 books
What is Roman Law?
From the beginning of time up until the fall of the Roman empire
Everything is planned, has a pathway
What is Common Law?
Catholic church law decreed by the pope
Everything is liturgical, everyone knows it all
What is Napoleonic Law?
French law from the time of Napoleon
He wanted everyone to be buried above ground (mausoleums)
What is Anglo-Saxon Common Law?
The basic for most American Laws
Generally accepted moral standards
(Ten Commandments and Golden Rule as examples)
How is dead body defined?
Body of a human being
If a fully disintegrated corpse a dead body?
No, it’s human remains
What did the Thomas v Anderson case decide?
Life ends when the heart and respiration stop
What did the Lovats v District Court case decide?
For legal medical purposes: an individual has sustained irreversible cessation of all functioning of the brain, including the brain stem, is DEAD
aka Brain Dead is dead
What did the State (Ohio) v Glass case decide?
“A cadaver is not an everlasting thing. After undergoing an undefined degree of decomposition, it ceases to be a dead body in the eyes of the law”
What did English law state about the legal status of dead bodies?
- The body was in control of the church
- No one had property rights of the body
- The body was buried in church property
What did Secular Times state about the legal status of dead bodies?
The courts ruled that survivors had quasi property rights in the dead
What did the US 6th Circuit Court of Appeals say about quasi property rights in the dead?
Church is no longer responsible for disposition of remains
What did the Brotherton v Cleveland case decide?
There is a legal bundle of rights (and obligations) in an object rather than the object itself
To possess, use, exclude, profit, and to dispose
Disposition: right to the body (must be treated with respect)
Where can there be a ground burial?
In a public or private cemetery
Where can there be an entombment?
In a mausoleum
If you’re going to scatter remains on land (public or private) what do you need to know?
Inform the Environmental Protection Agency
Ask Permission
What do you need to know about scattering remains in the ocean?
Must be 3 nautical miles from the shoreline
Report of the scattering must be filed with the EPA
What do you need to know about Burial At Sea?
- Weighted casket (insures remains sink to the bottom rapidly and permanently)
- File with the EPA
- Family isn’t able to go with the Navy during the ceremony and burial part
- Family is given coordinates on where the ceremony is, where the casket is dropped, not where it lands
- Bodies MUST go in a casket
What do you need to know about Anatomical Donations?
- Whole body donation (not organ)
- Donation must be done to a recognized institute
- Can be done at need or in advance
- Remains must meet criteria: can vary, weight and height, no communicable disease, intact
The body is physically within the custody of the next of kin (even if not physically next to them)
Actual Possession
The body is physically in the custody of another (hospital or mortuary)
Constructive Possession
What does the Funeral Contract need to have?
Oral or Written Disclosures
1) Itemization
2) Cash Transaction
3) Late Charges
4) Collection Fees
5) Estate Liability
6) Joint & Severe (individual) Liability
7) Disclaimer of warranties
What is the paramount right to disposition?
Provides an individual with broad authority in regard to the funeral and ultimate disposition of a dead body
What are the factors affecting the general rule of disposition?
Wishes of the decedent (need to be in writing and notarized)
Special Relationship (such as same sex couples which need NOK waiver and acceptance of partner) (or secret affairs or step parents)
Waiver (NOK wants nothing to do with the process)
What are statutory exceptions of disposition?
Wishes of the decedent (talk to family about your wishes)
Power of Attorney (needs to be a durable POA, which authorizes them to also be in charge of disposition)
Surviving Spouse
What is this:
- The person in charge can donate the deceased without the approval of the deceased
- Any individual of sound mind and legal age may donate all or part of their body
in a will
other than a will
next of kin
no question regarding gift
Anatomical Gift
What are the legal duties of the funeral director?
Care for the body
Assume Custody
Funeral Contract
Statutory Law
What kind of permits does the statutory duties (of FDs) have?
Death certificate
Report of Death
To who should the death certificate be filed with? And within how many days?
Local registrar (county in which death took place)
10 days after DOD
When should the Report of Death be filed?
Within 24 hours (to local registrar)
What is the reason for the TFSC?
Laws and rules on embalming and funeral directing
Transportation rules
What is negligent embalming?
Reasonably prudent and careful person skilled in embalming doing less than the bare minimum or unlawful things
(over/under embalming, unnecessary mutilation of the body, too much massaging, etc etc)
What is negligent funeral directing?
Failure to perform many duties involved in directing the funeral service
(examples: being on the phone at a service, taking advantage of family, leave before casket is buried aka covered, etc etc)
What are the contractual duties of the funeral director?
Negligent Funeral Directing
Safeguard the Body
Privacy
Defective Merchandise
Transportation
Aftercare
Which contractual duty of the funeral director is this:
- Failure to keep the body in suitable condition (after 24 hrs must be embalmed or refrigerated in Tx)
- Failure to supervise burial at cemetery (in Tx until services are completed)
- Failure to honor requests made by the family
- Failure to dress the body
- Failure to view the body
Negligent Funeral Directing
Which contractual duty of the funeral director is this:
- Reasonable precautions to safeguard the body
Safeguard the Body
Which contractual duty of the funeral director is this:
- Failure to comply with confidentiality
- Privacy during arrangements (photos, keep unwanted people out)
Privacy
Which contractual duty of the funeral director is this:
- Implied warranties
- Warranty of merchantability (warranty provided by manufacturer, only one we provide, pre-interment warranty)
- Fitness for a particular purpose
- Warranties can be properly disclaimed
Defective Merchandise
Which contractual duty of the funeral director is this:
- Negligent driver
- Agent of the funeral home
- Represents drivers to the FH employees
- Can rent limo / party bus, only inconvenience is drivers don’t know how to drive in a funeral procession, wait if separated
Transportation
Which contractual duty of the funeral director is this:
- It’s not grief therapy
- Grief training
- Trained counselor
- Malpractice insurance
- NOT preneed sales
Aftercare
What is this:
- Duty not to interfere with the right of burial
- Duty of exercising reasonable (ordinary) care
- To keep the funeral home premises reasonably safe
Tort Liability
What are the tort liabilities of the funeral director?
Wrongful withholding of the body
Loss of the body
Mutilation of the body
Injury to invitees
Injury to pallbearers and clergy
Which tort liability of the funeral director is this:
- The right to dispose of the body without interference
- In Texas: the body cannot be held for payment
Wrongful Withholding of the Body
Which tort liability of the funeral director is this:
- Misidentified a body
- Interred the wrong body
- Release from the FH, Hospital, ME, or Nursing home
Loss of the Body
How do we prevent the misidentification, and identify a body as soon as we resume custody?
- Always use Mr/Mrs/Ms
- Add tag even if they have a hospital ID
- Never write ON body
Which tort liability of the funeral director is this:
- If body is mutilated, tort is committed
- Embalming is mutilation (signed or oral permission)
- Unauthorized autopsies
- Under the direction of the coroner
Mutilation of the Body
Which tort liability of the funeral director is this:
- Funeral home owes a duty of care to each invitee
- Negligent design
- Negligent notice of condition
Injury to Invitees
Which tort liability of the funeral director is this:
- Duty to control the funeral prior to discovery
- Duty to instruct pallbearers
Injury to pallbearers and clergy
Who is legally bound to make arrangements?
NOK
if no NOK: friend / neighbor
If nothing, then county
If NOK has no money for the service, who can pay?
Next approved person
- FD can only take orders from NOK, even if they’re not the one paying
Who will pay for the funeral service?
- Estate of the decedent
- Surviving spouse
- Parent
- Any person who signs the contract
- The gov’t (local)
Which liability of the estate is this:
- Most jurisdiction
- Paramount rights
- Ideally the one paying
Primary Obligor
Which liability of the estate is this:
- Reasonable cost (basic services)
- FD knowledge of the money
Reasonableness of the funeral bill
Which liability of the estate is this:
- Probate court
- Takes approx. 6-10 months
Collection against the estate
True or false:
Some states have the rule (unless statute) that wife must pay the husband’s services
True
What is this:
- A person who requests funeral may not take financial responsibility
- May agree to contract
- If minor NOK: state assigns someone to take care of NOK, they also have to take care of funeral
Contractual Liability
How is an executor assigned?
Will assigns them to take care of your finances
Why should the executor sign the contract ‘Y/N, executor”?
The contract is between the FH and deceased, executor is just an agent
How is an administrator assigned?
No will
Court appointed
What are 3 cremation factors?
Growing acceptance
Influx of immigrants
Higher level of education
Should we insist on positive identification of body by NOK before cremation?
Yes
What are the 3 steps in authorization to cremate?
Funeral Home Procedure
Written Authorization
Informed Consent
Which step in the authorization to cremate is this:
- To prohibit misidentification
- Permanent identification of deceased
Funeral Home Procedure
What are permanent ways to identify deceased?
Toe Tag
Arm Band
Hospital Tag
Which step in the authorization to cremate is this:
- Signed by person with primary rights of disposition
- Where several people share primary rights, they all sign
- May obtain signature via fax
- Protects FH and FD
Written Authorization
Which step in the authorization to cremate is this:
- Fully understand cremation process
- Specific details
Informed Consent
What did the Texas Law 2003 have to say about crematories?
Funeral home may own and operate crematory
Before, only own a crematory if you had a perpetual care cemetery
What’s the rule about commingling remains?
One body cremated at a time
Small amount is inevitable
What do we need to know if not all remains fit in an urn?
Never dispose of the extra remains that don’t fit
Written authorization for all discarded remains (if told)
What do we need to know about jewelry and medical devices when cremating?
Removal of jewelry (if told by NOK) and devices (such as pacemaker)
Written authorization for disposal is required
Recommended to cremate body and then put the jewelry on top of remains in urn (in case family wants to retrieve)
What is the period to hold onto unclaimed cremains?
120 days in Texas
What do we need to know about written consent when remains are getting picked up?
Name better be on the authorization form
Get authorization for release
If non NOK picks up, call NOK to authorize, confirm if they can pick up
Get a signed receipt from person receiving cremated remains
What do we need to know when investigating third party crematories?
-Liability for crematory wrongdoings may be imputed to the FH
- Interview of crematory management
- Crematory inspection (are permits up to code? is person properly trained? etc etc)
- Routine investigations
-Crematory records request
What do we need to know when shipping cremated remains?
Family should identify shipper
Only through USPS
Have to label package that it’s remains
What crematory records should we request from third party crematories?
- State crematory license or permit
- Policy and procedure manual for crematory
- List of crematory operators
- Copy of operator certification
- Copies of liability insurance policies
- Copies of cremation authorizations, releases, and receipt forms used by the crematory
- Copies of any state inspection
- Copies of the most recent maintenance / inspection reports
Removal of a body from its place of repose after disposition has been completed
Disinterment
Is disinterment a matter of right?
No
A court will not allow a body to be disinterred unless:
There’s a strong showing it’s necessary
The interest of justice requires it
When is disinterment considered exhumation?
When it’s public interest
When is exhumation considered a public interest?
Legal nature ordered by a judge
To settle a case
To determine cause of death
For an exhumation, do we need permission from the state?
No just the judge (gives court order)
When is it referred to as disinterment?
When it’s private interest
What do we need when the disinterment is to a different cemetery (in or out of state)?
Permit from the state
If the disinterment is in the same cemetery who do we contact?
The Austin office to inform
What are reasons for a private interest disinterment?
Family disputes
Balancing factors
What requirements do we need to disinter in private interest?
Permit from Austin
Application by NOK
Must have funeral director present
Burial Transit Permit
Can we disinter without a permit?
No
Fixed place (non mobile) for the conducting of funerals and/or for the preparation for the dead prior to disposition
Funeral Home
Who may operate a funeral home?
Corporation
For profit
Non profit (in Texas not churches)
Cemetery
Funeral Home
What is the Americans with Disabilities Act?
To provide individuals with full use and enjoyment of public accommodations
What happened post January 1993?
Buildings were designed to fully comply with ADA standards
What’s the first offense for not complying with the ADA?
$50,000
What are the priorities of the ADA?
Ramps
Access to areas
Restrooms
Public telephones and water
What’s the subsequent offense for not complying with the ADA?
$100,000
